Kenya’s 2017 Elections—Electoral Peace and Electoral Justice, Two Sides of the Same Coin

On August 8th Kenya held what may be its most consequential elections to date. Although few were shocked when it was announced that incumbent Uhuru Kenyatta had won the presidential election, the country’s politics were upended on September 1st when the Supreme Court of Kenya nullified the results. Finding that there had been significant procedural irregularities, the Court ordered a new vote held within 60 days. At current writing, the Independent Elections and Boundaries Commission (IEBC) has stated the re-run of the presidential election will take place on October 26th, but the situation remains fluid. The opposition insists they will not participate in a new poll until a number of reforms are implemented and those responsible for the problematic first election are fired.

Violence has become a fixture of modern Kenyan elections. Even the country’s most “peaceful” and celebrated elections have experienced violence. There were dozens of fatalities before the 2002 elections and hundreds of fatalities before the 2013 elections. An opinion poll conducted just prior to the 2017 elections found that 45 percent of respondents believed violence was likely to take place in connection with the elections. Fraud, real or perceived, and a culture of impunity, have created a cycle of grievance and violence that has gripped every Kenyan election since 1992. Could this watershed moment in Kenyan politics lead the country to chart a new course for the holding of future peaceful and just elections?

Violence & the 2017 Elections

At the presidential level, the 2017 general election was a rematch of the 2013 election. Uhuru Kenyatta and his deputy William Ruto from the Jubilee Party, ran against long-time opposition leader Raila Odinga and his deputy Kalonzo Musyoka, both from the NASA coalition. In 2013, Kenyatta bested Odinga, receiving 50.5 percent to Odinga’s 43.7 percent. Going into August, many polls had Kenyatta and Odinga statistically tied.

Pre-election Violence

Based on an analysis of media reporting, at least 80 violent events directly related to the elections took place in the six-month period prior to the elections including riots, clashes between rival partisans, and political assassinations.1 The violence occurred at multiple levels and was associated with national level and local level elections.

Approximately 20 people were killed including four candidates, four rival party supporters, several protesters, and an election official and his companion. The bodies of Acting Director of Information and Communications Technology for the IEBC Chris Msando and Carol Ngumbu were found a little more than a week before the elections. It is alleged that Msando had been tortured before his death. Msando’s position within the IEBC and his in-depth knowledge of the election management fueled fears the election was going to be rigged. The police are still investigating their murders.

The International Crisis Group reported on conflicts in Laikipia, Narok, and Isiolo and Marsabit that looked suspiciously like they were being orchestrated by local politicians before the elections. Events such as these are not captured in the above analysis, however, because they were reported as land-based clashes or ethnic clashes and their ties to elections were not obvious at first glance.

Violence in Laikipia alone resulted in approximately 25 fatalities from March to May 2017. Rumors had persisted for months that local politicians in Laikipia were behind the clashes but nothing was substantiated until shortly before the elections when Laikipia North MP Mathew Lempurkel, a member of the opposition, was arrested for incitement to violence in late July. Lempurkel lost his re-election bid to Sarah Korere, whom he had been arrested for attacking in November 2016. The assault case is currently pending in court.

Post-election Violence

Violence broke out after the official results were announced on August 11th when Kenyatta was declared the winner with 54.3 percent of the vote to Odinga’s 44.7 percent. Violence continued for several days, claiming the lives of an estimated 30 people and injuring more than 150 according to civil society groups, local politicians, and media reports.2 The police, using excessive force and heavy-handed tactics, are believed responsible for most of the fatalities. The government also moved to shut down prominent civil society voices that were questioning the integrity of the election (AFRICOG) and decrying the violence (Kenyan Human Rights Commission).

Odinga publicly stated for months leading up to the 2017 elections that he did not trust the judiciary and would not turn to the courts if he lost. Many interpreted this to mean that he would take his electoral grievances to the streets instead. After the 2013 loss, Odinga challenged the results in the Supreme Court. Despite significant irregularities and technological failures, the apex court upheld Kenyatta’s win, reportedly souring his opinion of the court. He ultimately decided to challenge the outcome of the presidential contest in the Supreme Court, however, alleging that massive fraud had been committed and calling the results “computer-generated.” Odinga indicated that the decision to challenge the outcome in the courts was based in part on the government’s repression and crackdown on civil society. The groups the government had targeted were also the ones most likely to contest the elections in court.

The Cycle of Violence

Election violence is frequently related to fraud and a lack of trust in the key institutions responsible for managing elections. It is also more common in countries where adherence to rule of law is low. Virtually every Kenyan election has been plagued by allegations of fraud; trust in the IEBC and the judiciary is currently heavily polarized along party lines with levels of trust extremely low amongst members of the opposition; and, historically, few perpetrators of election violence have been held to account for their actions.

The 2007 elections resulted in more than 1,400 deaths, 600,000 displaced, and countless injuries. The overwhelming majority of the violence occurred in the post-election period and was triggered by what the opposition perceived to be a blatant attempt by incumbent President Mwai Kibaki to steal the election from Odinga. Believing that they were wronged and seeing no viable course of action through the Kibaki-appointed courts, the opposition took to the streets in protest. The government responded by dispatching the police to put down the protests. It is estimated that 35 percent of fatalities were committed by state security forces. Violence was also allegedly organized by politicians on both sides—the opposition to force the government to negotiate and the government to punish rival supporters. The violence only stopped after a power-sharing agreement was brokered by former United Nations Secretary General Kofi Annan.

As of today, none of the main culprits of the 2007-2008 violence have been held accountable. After repeated attempts to establish a domestic tribunal failed, the International Criminal Court (ICC) in 2010 filed charges against six of the alleged perpetrators of the violence, including current President Kenyatta and Deputy President Ruto. All six cases eventually fell apart due to insufficient evidence. In the case against Ruto, one of the ICC judges claimed that “witness interference and intolerable political meddling” led to the withdrawing of charges.

In July, Ruto stated that the final recommendations of the Truth Justice and Reconciliation Commission of Kenya (TJRC), established in 2008 to help the country address historical injustices at the root of the post-election violence, should not be implemented because it would only serve to re-open old wounds. Of the hundreds of deaths associated with Kenya’s 2013 elections, very few were successfully prosecuted for their involvement, an exception being two members of a secessionist group in Mombasa who were found guilty in 2016 of a fatal attack on four police officers before the elections.

Implications for Kenya’s Next Election(s)

Thus far the 2017 post-election violence in Kenya, in which an estimated 30 people have died, has been largely perpetrated by the state. The violence was most probably intended as a show of force to send a message to the opposition to prevent them from organizing sustained protests against the outcome of the election. This would explain why it was concentrated in opposition strongholds. It was fairly effective as there had been very few opposition protests staged until the last week of September. NASA held its first large-scale protest on September 26th in the capital city Nairobi and in Kisumu and has now promised to start holding regular protests until its slate of election reforms are adopted. The momentum of these protests, and how the state’s security forces respond, will set the tone for the presidential re-run.

Once the new poll date is firmly fixed, some level of violence could occur before the election. Protests over election preparations could turn violent. As has happened in previous elections, either presidential camp could attempt to affect turnout by mobilizing supporters or demobilizing the opposition through violence and intimidation. Post-election violence is also a very real possibility depending on how adeptly the IEBC is able to manage the election and how credible are the results. Fraud in the next election could trigger significant violence. The opposition believes that the election was already stolen from them once in 2017 (and there is evidence to suggest it was stolen in 2007 and perhaps in 2013 as well). Another fraudulent election could cause a cascade of protests, counter-protests, strategic violence, and state repression that once unleashed could prove difficult to contain, as was the case in 2007.

But the future is not written. There is no reason why violence has to occur in any election in Kenya. The Supreme Court’s decision to annul the election may have breathed new life into an electoral process that had been hemorrhaging credibility. In order for peace to reign, two things need to occur: 1) a genuinely free, fair, impartial, and transparent election needs to be held; and 2) any and all instances of electoral violence, pre and post, need to be acknowledged and prosecuted to the full extent of the law without prejudice. Politicization of prosecutions will only serve to aggravate the situation.

These steps are admittedly difficult to implement. They require a sustained commitment on the part of the international community to hold Kenyan elections to a higher standard of conduct than they usually do. These steps also require substantial political will on the part of the government of Kenya to prosecute all accused of engaging in election violence, including security forces and politicians on both sides of the aisle. But these steps seem to be only path forward for Kenya towards future peaceful elections.

and the Armed Conflict Location and Event Data Project (ACLED). ACLED aggregates data from newspaper and other open source reporting on political violence events in Africa and parts of Asia. Raleigh, Clionadh, Andrew Linke, Håvard Hegre and Joakim Karlsen. 2010. “Introducing ACLED – Armed Conflict Location and Event Data.” Journal of Peace Research 47(5), 651-660. These numbers should be interpreted with caution. They are most likely a floor and not a ceiling. Accurate numbers on illicit activities are notoriously difficult to come by.

2 The Kenya National Commission on Human Rights released a statement on August 12, 2017, claiming that at least 24 people had died as a result of post-election violence, however, there is evidence suggesting the true fatality number is higher than this. In late August, several bodies were found in Lake Victoria. Newly elected Kisumu Governor Anyang Nyong’o alleged at least one of the fatalities was related to post-election violence. Additional data from ACLED reports 3 additional fatalities occurred as a result of post-election violence during the month of August.

Stephanie Burchard is a Research Staff Member in the Africa Program at the Institute for Defense Analyses in Alexandria, Virginia.